Citation Nr: 21029350 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-39 486 DATE: May 13, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. A pre-existing mid-back disability was unequivocally established. The preponderance of the available evidence does not demonstrate that there was an unequivocal worsening of the pre-existing back disability during service. 2. The preponderance of the evidence is against a finding that the Veteran's back disability that did not pre-exist his military service had an onset in service or is otherwise related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 23, 1979 to June 1, 1979. The Board of Veterans' Appeals (Board) reopened and remanded this matter in July 2019 for further evidentiary development. The case has returned to the Board for appellate review. Generally, service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks entitlement to service connection for a back disability. The Veteran contends that his current back disability did not pre-exist his military service and it is related to service. Although the Board acknowledges the Veteran's contention that he did not have a back injury prior to service, such is contradicted by the available objective medical evidence, which contained x-ray evidence of an old injury as well as the Veteran's own assertions during service that he had back pain for a year. Specifically, the Veteran's April 1979 entrance examination is absent complaints of a back disability or back pain. A May 1979 service treatment record (STR) shows that the Veteran complained of back pain. The Veteran complained of thoracic lumbar pain for a year and an increase in pain for three to four days prior to the visit after carrying a backpack, no trauma. X-rays showed wedging with scoliosis of T8 and the impression was chronic back pain. A May 1979 Entrance Physical Standard Board Proceeding found that current x-rays show wedging with sclerosis on superior and inferior aspect of T8, compatible with old fracture. The Board observes that the Veteran was subsequently discharged in June 1979 for failure to meet fitness standards. The Veteran marked that he concurred with these proceedings and requested to be discharged without delay. The December 2019 VA examiner confirmed the Veteran's back diagnoses as T8 wedging with sclerosis on T8 superior and inferior aspect, compatible with an old fracture with mid and low T-spine moderate degenerative changes and L5-S1 degenerative disc disease (DDD) of the lowest lumbar spine. Thus, there is evidence of current back disabilities, one of which pre-existed his military service. One remaining question is whether the Veteran's pre-existing back was aggravated by his military service or if the DDD is related to his military service. Turning to the record, the April 2015 VA examiner did not review the Veteran's records and noted that without the Veteran's STRs she was unable to comment without resorting to mere speculation as to whether the Veteran's back disability was aggravated beyond its natural progression by his military service. The examiner noted that the Veteran's reports of wearing and carrying heavy gear would contribute to increased back pain and strain, however, given the short time in service, would less likely than not result in accelerated degenerative changes beyond that which would have eventually developed without carrying heavy equipment during his two months of service. The Board found the April 2015 examination to be inadequate for rating purposes as she did not review the Veteran's claims file, so the Board did not rely on this examination when making this present decision, but the examination provides the Board with a general notion of the Veteran's back disability symptoms and his contentions throughout the course of this appeal. At a June 2015 private evaluation, the Veteran reported the start of his back pain in 1979 while doing pushups. The physician noted that he believes the Veteran's back pain is directly attributed to the Veteran's military service and he does not believe that the T8 fracture is symptomatic as he had no midback pain at the time of the evaluation. However, there is no indication that the June 2015 physician reviewed the Veteran's claims file or records and the opinion was provided solely based on the Veteran's lay statements. This error significantly diminishes the probative value of the June 2015 opinion. Significantly, it was mid back pain that the Veteran reported during service. The June 2016 VA examiner indicated review of the Veteran's claims file. The examiner opined that the Veteran's back, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner provided the rationale that the Veteran's STRs show a May 1979 physical therapy note where the Veteran admitted to a prior back injury and having back pain for a year. The examiner further provided that it is not possible to assess a baseline level of severity for the preexistent T8 fracture based on records available. The Board found the June 2016 examination to be inadequate for rating purposes, so the Board did not rely on this examination when making this present decision, but the examination provides the Board with a general notion of the Veteran's back disability symptoms and contentions throughout the course of this appeal. As previously mentioned, the Board remanded this matter in July 2019 to obtain the Veteran's Social Security Administration (SSA) records and to afford the Veteran a VA examination. Specifically, the Board found that the April 2015 and June 2016 examiners failed to address all of the Veterans diagnosed back disabilities, warranting a new VA opinion. Pursuant to the Board remand, the VA obtained the Veteran's SSA records and the Veteran was afforded a VA examination in December 2019. The December 2019 examiner opined that the Veteran's back disability, which clearly and unmistakably existed prior to service, was less likely than not aggravated beyond its rate of natural progression by any treatment or in-service injury. The examiner provided the rationale that the Veteran's pre-existing disability was wedging and sclerosis of T8 compatible with an old fracture. He complained of back pain in that area for a year when he was seen in the physical therapy clinic in May 1979. It was noted that he was carrying a heavy backpack for two to three days which increased his back pain. However, this complaint of pain does not represent a permanent aggravation of the pre-existing back disability of T8 as x-rays of the spine in May 1979 did not show any changes of his pre-existing disability. The December 2019 examiner acknowledged the June 2015 private opinion and notes that the physician did not review the Veteran's claims file. The December 2019 examiner further noted that the physician is referencing low back pain and attributes it to service, but the Veteran's STRs do not document complaints of low back pain. Instead, the records mention mid-back pain. The December 2019 examiner further opined that the Veteran's DDD did not pre-exist his military service and it less likely than not had its onset during service or is otherwise etiologically related to his military service. The examiner provided the rationale that there were no complaints of low back pain in service, it was first noted on x-rays over 30 years after service, and there is no probative evidence to show an etiological relationship. The examiner further noted that the Veteran's SSA records from 2014 to 2015 do not document any DDD or low back pain. The Board finds this opinion well-reasoned and thoroughly considered the Veteran's complete medical history and is accordingly afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Veteran contends that he believes his current back disability to be due to his military service and did not pre-exist his military service. The Board acknowledges the Veteran's lay statements regarding the nature and etiology of his back disability. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain, wincing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns little probative value to these lay assertions of the etiology of his back disability. The Veteran's back disability pre-existed his military service, and there is no clinical evidence that his pre-existing back disability was aggravated by his military service. The December 2019 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, and clinical history. This is, in the Board's view, persuasive, especially with consideration given to the entire record. Accordingly, based on the evidence discussed above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for a low back disability. The benefit of the doubt rule does not apply, and the appeal must be denied. See 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.